Ex-Wisconsin district attorney lose another records fight

By SCOTT BAUERMay 7, 2019

MADISON, Wis. (AP) — A retired district attorney lost another court battle Tuesday in his effort to prevent the Wisconsin Department of Justice from releasing public records related to a closed investigation into his time as a prosecutor.

The 3rd District Court of Appeals ruled against Albert Moustakis, who retired in 2016 after serving 20 years as district attorney in northern Wisconsin’s Vilas County. The loss followed the Wisconsin Supreme Court’s rejection in 2015 of a Moustakis lawsuit that sought to keep the records from being released.

Moustakis made different legal arguments in each case with the same goal: blocking the Lakeland Times newspaper from getting the investigative report. In 2013, the newspaper asked the Department of Justice for records of any complaints or investigation into Moustakis. The department said there was an investigation, but that no allegations were substantiated.

Moustakis sued before the redacted records could be released. He first argued that as a public employee, he had the right for a judicial review to potentially block the release of information compiled by his employer. But the Wisconsin Supreme Court determined that Moustakis was not “an employee” under the terms of the state open records law and had no standing for a judicial review.

In the latest case, Moustakis argued that the Department of Justice’s records custodian performed an arbitrary public interest balancing test before deciding to release the records. He also argued that the open records law is unconstitutional as it applies to him because it excludes him from the class of government workers who are entitled to judicial review before records are released.

The appeals court rejected both arguments, saying Moustakis failed to show he had a clear legal right to have the records withheld or that the law was unconstitutional as it applied to him.

“This case was never a close call,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “It was always about the law being clear and Albert Moustakis being wrong. This has been a huge waste of public resources to reach a conclusion that should have been clear on its face.”